IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090017185 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that when he was in the military he went absent without leave because he wanted to go home.  He goes on to state that he was young and dumb and he does not know why he did it and if he had to do it over again he would not.

3.  The applicant provides two self-authored statements regarding his application and three third parties statements of support. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 28 September 1947 and enlisted in the Regular Army in Beckley, West Virginia on 26 September 1966 for a period of 3 years and airborne training.

3.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Gordon, Georgia to undergo his advanced individual training (AIT) as a light weapons infantryman.

4.  On 19 February 1967, he went absent without leave (AWOL) and remained AWOL in a desertion status until he was returned to military control at Fort Belvoir, Virginia on 31 March 1967 and charges were preferred against him for the AWOL offense.  He again went AWOL on 21 April until he was returned to military control at Fort Belvoir on 12 July 1967 and charges were preferred against him.

5.  On 25 August 1967, he was convicted pursuant to his pleas by a special     court-martial of being AWOL from 19 February to 31 March and from 21 April to 12 July 1967.  He was sentenced to confinement at hard labor for 4 months and a reduction to the pay grade of E-1.  On 1 November 1967, the convening authority suspended the unexecuted portion of his sentence pertaining to confinement until 24 December 1967, unless sooner vacated.  

6.  The applicant received orders transferring him to Vietnam and he went AWOL on 8 November 1967 and remained absent in desertion until he was returned to military control at Fort Belvoir on 13 January 1968.

7.  On 16 February 1968, he was convicted by a special court-martial of being AWOL from 8 November 1967 to 13 January 1968.  He was sentenced to confinement at hard labor for 6 months.

8.  On 5 August 1968, the applicant went AWOL and remained absent in desertion until he was returned to military control at Fort Belvoir on 11 December 1968.  He was convicted by a special court-martial on 24 January 1969 and was sentenced to confinement at hard labor for 6 months and reduction to the pay grade of E-1.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Roanoke, Virginia in October 1970.  However, his records do contain a duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant which shows that he was discharged under other than honorable conditions on 2 April 1969, under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 4 months and 28 days of total active service and had 759 days of lost time due to being AWOL and in confinement.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore are presumed to be appropriate to the facts of the case and his otherwise undistinguished record of service.



3.  The applicant’s contentions and his supporting documents were considered.  However, they were not sufficiently mitigating when compared to the short amount of service he actually served, the extensive amount of lost time, and his overall undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X__  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090017185



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ABCMR Record of Proceedings (cont)                                         AR20090017185



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